Europe | ePrivacy Regulation update

What happened:

Europe’s proposed new ePrivacy Regulation looked like it might be losing momentum in its passage through the legislative process. However, two new developments on 19 October 2018 suggest there may be significant political will to try and get it over the line before the current term of the European Parliament ends in April 2019.

First, the European Data Protection Supervisor published a blog article in support of the additional restrictions and protections proposed in the draft Regulation.

Secondly, the Presidency of the Council of the EU published a new revised draft text in advance of the Council’s meeting on 26 October 2018. The new draft represents a significantly more business-friendly and practical approach than the original Commission draft and the position adopted by the European Parliament in October 2017. Key proposed changes include:

stronger recognition of the role of targeted advertising in funding online services, including language suggesting that “acceptance” of cookies for these purposes may replace the need for GDPR-grade consent;

a more tightly defined scope for “direct marketing communications”, such that targeted online ads would not generally be caught by the same opt-in rules as email marketing (a potential issue under previous drafts);

wider rights to use third party analytics cookies without specific consent;

a provision allowing for a single cookie consent signal to cover multiple users of the same device;

a broader scope for the “soft opt-in” existing customer exemption for email and SMS marketing; and

a proposed two year period before the Regulation comes into force.

Why this matters:

With the ePrivacy Regulation originally targeted to be in force at the same time as the GDPR (25 May 2018), many had started to wonder whether the Member States represented on the Council would be able to resolve their differences in time for this legislation to be finalised during the current European Parliament term. That may still be challenging, as even once the Council has settled on its position, the three-way “trilogue” negotiation between the Commission, the Parliament and the Council will still need to be concluded before the current Parliament term ends on 18 April 2019.

The Council would normally be expected to take a more business-friendly stance than the Parliament or the Commission. However, it is important to remember that the Presidency’s draft text may not be adopted by the Council in its current form, and of course the Council’s position going into the “trilogue” process is just one of three positions that will need to be reconciled.